New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

The Office of General Counsel issued the following informal opinion on November 19, 2001, representing the position of the New York State Insurance Department.

Re: Domestic Partners Coverage in Health Insurance Family Contracts

Question Presented:

May a domestic partner be covered as a dependent under a health insurance family contract in New York?

Conclusion:

Yes, under certain circumstances, with a requisite showing of financial interdependence, a domestic partner may be covered under a health insurance family contract in New York. However, the insurer is not obligated to cover a domestic partner. This coverage is permissive, rather than mandatory.

Facts:

No additional facts were given.

Analysis:

The question presented is whether, with respect to family coverage under a health insurance contract, an employee can cover his/her domestic partner as a dependent.

The Insurance Law treats the issue of dependent’s or family coverage in four different ways, depending upon the type of insurer (commercial or non-profit) and type of policy (group or individual).

For group policies by a commercial insurer, N.Y. Ins. Law § 4235(f) (McKinney 2000) provides that benefits can cover specified expenses of "the employee or other member of the insured group, his spouse, his child or children, or other persons chiefly dependent upon him for support and maintenance . . . ." (emphasis added).

For group policies by a non-profit insurer, N.Y. Ins. Law § 4305(c) (McKinney 2000) provides that benefits can cover members of a covered group "for himself, his spouse, his child or children, or other persons chiefly dependent upon him for support and maintenance . . . ." (emphasis added). In accordance with N.Y. Public Health Law § 4406(1) (McKinney 1985 & Supp. 2001), contracts of HMO’s are governed by this requirement.

For an individual commercial policy, N.Y. Ins. Law § 3216(c)(3) (McKinney 2000) permits the policy to insure "members of a family," which section 3216(a)(3) defines as husband, wife, dependent children "or any other person dependent upon the policyholder." (emphasis added).

An individual policy issued either by a non-profit Article 43 company or any HMO, N.Y. Ins. Law § 4304(d)(1) (McKinney 2000) permits a "family contract" under which expenses are paid on behalf of a "husband and wife, or husband, wife and their dependent child or children, or any child or children not over nineteen years of age . . . ."

Where coverage may be extended to those "dependent" or "chiefly dependent" upon the insured (i.e., in the case of group policies written by either a commercial or non-profit insurer, or of individual policies written by a commercial insurer), the Department would allow coverage for non-married domestic partners able to demonstrate the requisite dependency.

The term "dependency" includes both situations of unilateral dependency and mutual interdependence, which may be evidenced by a nexus of factors, such as common ownership of property, common householding, shared budgeting, length of the relationship, etc. The presence or absence of any one factor would not be dispositive.

However, the insurer is not obligated to cover any of these classes, and is free to offer policies that cover the employee only, the employee and spouse only, etc. Nor is an insurer who offers coverage to some dependents of the insured obligated to offer it to all potential classes of dependents, provided that the distinction is not based on unlawful discrimination. These coverages are permissive, rather than mandatory.

For further information, you may contact Senior Attorney Meredith S. Kaufer at the New York City Office.